At the hub of legal ethics are the principles governing the conduct of members of the legal profession — attorneys and judges alike — are expected to observe throughout their legal careers. Sometimes, living up to these standards of honor and dignity seems simple enough; other times, however, the ethical lines are not so clear.

This is where the State Bar of Michigan Standing Committee on Judicial Ethics and the Standing Committee on Professional Ethics step in to assist members with the application of the Rules of Professional Conduct through ethics opinions. During the 2022-2023 Bar year, both committees fulfilled their duties by providing guidance with formal opinions, answers to frequently asked questions, and other resources.

STANDING COMMITTEE ON PROFESSIONAL ETHICS

The Standing Committee on Professional Ethics recognized that the guidance provided in CI-947 was outdated and needed to be modernized. To accomplish this goal, the committee rescinded CI-947 and published Ethics Opinion RI-384¹ to ensure lawyers and law firms understand their responsibility so that all funds maintained within an Interest on Lawyer Trust Account (IOLTA) are accounted for. Further, the committee provided guidance stating that if unidentified funds are found within an IOLTA and diligent and reasonable inquiries and efforts have been made to identify the source, the lawyer or firm may donate the funds to the Michigan State Bar Foundation or the State Bar of Michigan Client Protection Fund.

The Standing Committee on Professional Ethics also provided analysis on the complex ethics issue of keyword advertising with Ethics Opinion RI-385. The topic generated many comments to committee members and calls to the SBM Ethics Helpline as potential clients increased their use of technology to locate an attorney rather than relying on word of mouth. The committee analyzed MRPC 7.1, 7.5, and 8.4 and looked at outcomes from several states that had also investigated the topic and concluded that attorneys may not utilize a keyword advertising campaign that involves using the name of another attorney, law firm, or the attorney’s or law firm’s trade names without the express consent of the other attorney or law firm.

Additional opinions the Standing Committee on Professional Ethics issued included Ethics Opinion RI-386, which provided long-awaited guidance on how attorneys can ethically provide representation to clients whose decision-making abilities are impaired, what attorneys may wish to consider as next steps when a client is diagnosed, and what to do when a client is undiagnosed. The opinion concludes that lawyers must exercise professional judgment and continue representation to safeguard the client’s best interests and the attorney-client relationship. And Ethics Opinion RI-388 provided for the duty to safeguard digital property under MRPC 1.15(d). The committee concluded that the obligations found under MRPC 1.15(d) apply to digital property like it does for any other lawful property entrusted to the lawyer and offers guidance regarding lawyers’ obligations of storage versus access.

STANDING COMMITTEE ON JUDICIAL ETHICS

The Standing Committee on Judicial Ethics reviewed various topics during the past Bar year and published opinions addressing disclosure to all parties of prior relationships and children in common and a judge’s ethical duty to maintain technological competence, including artificial intelligence.

One judge inquired whether a lawyer appearing before a judicial officer who had divorced or terminated a prior dating relationship must disclose that relationship to all parties. Further inquiry was made regarding whether disclosure is required if the lawyer and the judicial officer have a child in common. These issues were analyzed in Ethics Opinion JI-153, which examined the divorce or termination of a relationship with and without children and how the passage of time affects that disclosure. To avoid the appearance of impropriety and ensure the neutrality of the bench, disclosure is required, and the judicial officer must consider disqualification under MCR 2.003.

In light of the rapidly evolving use of artificial intelligence, the committee issued Ethics Opinion JI-155 ensuring that judicial officers are aware of their obligations to maintain competence with advancing technology including, but not limited to, artificial intelligence. The opinion explores the obligation set forth in canons 2 and 3 of the Michigan Code of Judicial Conduct.² The committee will continue to watch and provide ethical guidance as the growing use of artificial intelligence in the legal field affects the way judicial officers operate. Committee members will also partner with the Michigan Judicial Institute this year to provide regional presentations on the ethics of artificial intelligence and the bench.

ADDRESSING THE MOTION TO WITHDRAW

Both the Standing Committee on Professional Ethics and the Standing Committee on Judicial Ethics found that guidance was absolutely necessary on a topic that plagues both judges and lawyers — how to ethically handle a motion to withdraw. The SBM Ethics Helpline routinely receives calls from judges and lawyers asking how to handle motions to withdraw, specifically regarding confidences, bases, the amount of information or evidence to place on the record, and more.

To ensure that both judges and lawyers received the needed guidance, the committees released opinions JI-154 and RI-387. Ethics Opinion JI-154 provides that courts may require lawyers to reveal information protected under MRPC 1.6 only to the extent reasonably necessary to adjudicate the motion to withdraw, but doing so should order lawyers to reveal information under MRPC 1.6(c)(2) and ensure that no other counsel or parties examine the withdrawing lawyer. Ordering disclosure of protected information should be an exceptional, rather than normal, practice narrowly tailored to what is reasonably necessary to allow courts to fulfill the duties of impartiality and diligence as required under Canon 3.

Ethics Opinion RI-387 provides that lawyers may not ethically reveal confidences or secrets protected under MRPC 1.6 unless ordered by the court or tribunal to do so. The opinion offers guidance on mandatory and permissive withdrawals and the amount of information necessary to relay within the motion.

MORE FROM THE COMMITTEES

In addition to opinions, the Professional Ethics Committee and Judicial Ethics Committee continued to provide guidance by issuing answers to frequently asked questions and guidebooks, all of which can be found on the SBM ethics homepage at www. michbar.org/opinions/ethicsopinions. Recent guidebooks include Changing Firms: Ethical Responsibilities for Lawyers and Law Firms³ and Navigating Ethical Complexities: Child Protective Proceedings for L-GALs.⁴

Both committees provide advisory, nonbinding written ethics opinions. Requests for opinions may be made by any attorney, and information on how to make a request an ethics opinion can be found at michbar.org/generalinfo/ethics/request. Ethics opinions are researched and drafted by the committees. As a way to encourage members to seek guidance and facilitate open deliberations on issues, requests for written ethics opinions — including the identity of the inquirer, identifying facts, and draft opinions — are confidential.

CONCLUSION

Ethics rules set the foundation for the legal profession in a modern, culturally complex society. Navigating these issues requires guidance, and ethics opinions help members address the complex situations they may face on a daily basis. There is no denying that the practice of law is becoming increasingly complex; it is important to develop frameworks to ensure we make decisions consistent with the core fundamentals of law. Accomplishing this requires SBM members to be aware of the Rules of Professional Conduct and how to apply them. The simplest way to do so is relying on the ethical opinions written by the attorneys and judges facing these issues every day.